'Detainees Who Cannot Be Prosecuted' — Obama Reveals His Inner Bush?

Via Andrew Sullivan, Scott Horton flags a troubling line in the newly released National Security Strategy. At issue is the matter of terrorism suspects who "cannot be prosecuted." Which is to say, at issue is the very essence of American law: that all suspects are innocent until proven guilty by a jury of their peers, and that they have the inalienable right to trial. It's an enormously important matter, drawing together the last decade's political battles over what, legally, a terror suspect is (criminal or enemy combatant) and what methods can be used to extract information from him (traditional interrogation or "enhanced interrogation techniques").

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But it's not news. President Obama described the problem of prisoners who cannot be prosecuted in a major speech at the National Archives last May. A month later, the White House announced it was considering an executive order that would codify indefinite detentions. That order was never given, as far as I can determine, but Horton reads the National Security Strategy as just such a codification — and as a direct continuation of Bush-era "indefinite detention" policies by the Obama administration. I am not so sure.

In the National Archive speech, Obama noted that the prisoners in question cannot be prosecuted because the evidence against them has been tainted. Tainted, that is, by practices such as "enhanced interrogation" that his administration considers, and has formally made, illegal. That doesn't solve the moral crisis — the essential un-American-ness — that the continuing detention of these suspects represents. But in his speech Obama stated, and the new NSS states, that the administration is trying to figure out how to legally and ethically resolve the crisis. In other words, the administration claims to be committed to cleaning up the Bush legacy, not continuing it. "Claims" being the operative word. I'm cautiously inclined to adopt the Reagan approach on this matter: trust, but verify.